Wise Property Care successful in passing off action
Legal updates: case law analysis and intelligence
In Wise Property Care Limited v White Thomson Preservation Limited ( CSOH 46, March 20 2008), White Preservation Ltd, a trading division of Wise Property Care Limited, has successfully defended an application for recall of an interim interdict (interim injunction) which had been granted without notice against White Thomson Preservation Limited and other defendants.
According to Gill Grassie of Maclay Murray & Spens, the case has a complex background borne out of a family dispute involving the surname White. Before the Outer House of the Court of Session, Wise Property successfully argued that:
- the name White Thomson Preservation Limited was confusingly similar to the name of Wise Property’s trading division, White Preservation; and
- the defendants' use of the name White Thomson Preservation Limited passed off their business and services as those of Wise Property.
The defendants argued that White Preservation is a dormant company used to preserve the company name White Preservation for the benefit of Wise Property. The Court of Session rejected the suggestion that this gave the defendants a defence to passing off.
Arguably, it is desirable that the Scottish courts take such a firm approach at the interim stage. However, where IP is protected at the level of unregistered names, the courts do not so much apply the law to the facts as determine the nature of the facts, thereby establishing the parameters of the law.
Jeremy Phillips, IP consultant to Olswang, London
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